Law N Fact, Precedent, Logic N Reasoning

Legal
Legal Methods
Methods Part
Part II
II
Law
Law logic
logic and
and reasoning
reasoning
Law and Fact

Law and fact
• It is commonly said that all
questions which arise for
consideration and determination
in a court of justice are of two
kinds, being either questions of
law or questions of fact.
Tuesday, December Dr. Tabrez Ahmad, KLS KIIT. 2

7, 2021
The term question
of law
• A question which the court is bound to
answer in accordance with a rule of law-A
question which the law itself has
authoritatively answered, to the exclusion
of the right of the court to answer the
question as it thinks fit in accordance with
what is considered to the truth and justice
of the matter.

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The term question
of law
• A question of law is a question as to
what the law is. Thus, an appeal on a
question of law means an appeal in
which the question for argument and
determination is what the true rule
of law is on a certain matter.

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The term question
of law
• Question of law in this sense arise, not out
of the existence of law, but out of its
uncertainty. If the whole law could be
definitely ascertained, there would be no
questions of law in this sense; but all
questions to be answered in accordance
with that law would still be questions of
law in the former sense.

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The term question
of law
• When a question first arises in a
court of justice as to the meaning of
an ambiguous statutory provision the
question is one of law in this second
sense ;it is a question as to what the
law is. But it is not a question of law
in the first sense, but a question of
fact.

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The term question
of law
• The business of the court is to determine
what, in its own judgment and in fact, is
the true meaning of the words used by the
legislature. But when this question has
once been judicially determined, the
authoritative answer to it becomes a
judicial precedent which is law for all
other cases in which the same statutory
provision comes in question.

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The term question
of law
• The question as to the meaning of the enactment
has been transformed from one of fact into one
of law in the first sense; for it has in all future
cases to be answered in accordance with the
authoritative interpretation so judicially placed
upon the enactment. The judicial interpretation of
a statute, therefore, represents a progressive
transformation of the various questions of fact as
to the meaning of that statute into questions of
law (in the first sense ) to be answered in
conformity with the body of interpretative case-
law so developed.

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The term question of
fact
• All other questions are question of
fact-using the term fact in its widest
possible sense to include everything
that is not law. In this sense, every
question which has not been
predetermined and authoritatively
answered by law is a question of fact.

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Legal
Legal Methods
Methods Part
Part II
II
Law
Law logic
logic and
and reasoning
reasoning
Determining the Ratio Decidendi
of a case
Law
Law logic
logic and
and reasoning
reasoning
Sources of Law
Precedent and Statutes
How to find the Law
3 Important
Sources of Law
Custom Precedent Legislation

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Determining the law
Nature of the
The language in
Examining the reasoning process
which they are
sources of the law by which they
expressed
are applied to the facts

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Two main sources of our law are:
1. Case decisions-Precedent-Ratio Decidendi-Obiter
Dicta
2. Statutes- Interpretation of the statute
Judgments in cases are sources of law, for what a

court declares the law to be in one case has “
authority” in the sense that it must be taken into
account by other judges when they are
determining what law should apply to other similar
fact situations.

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• Justinian issued a mandate: "Cases should be
decided on the basis of laws, not precedents."
This still governs the Civil Law Countries, where
judicial precedent is not considered a formal
source of law. Here codes are the chief source of
law and Judges are to respect them. In contrast
to this stands the Anglo-American legal tradition,
where judicial precedents are regarded as formal
sources of law. However, a precedent is
considered a less authoritative source of law than
a statute.

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• The term commonly used for the doctrine of
precedent is called stare decisis. This is an
abbreviation of the Latin phrase, stare decisis et
non quieta movere (to stand by precedents and
not to disturb settled points). Generally speaking
stare decisis means that a point of law once
settled by a judicial decision is not to be departed
from. In other words, an earlier case when
directly in point must be followed in a subsequent
case.

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• The binding authority
• A court is bound by statute or by the decisions of superior
courts. The 'doctrine of the case' or ratio decidendi as it is
called immortalises a case and it differs from ratio legis or
the reason behind the law. Now, ratio legis applies to
statutory law and the ratio for a statute may be social or
economic. Thus the reason behind the Child Marriage
Restraint Act, 19 of 1929 is social, whereas that behind the
Monopolies and Restrictive Practices Act, 54 of 1969 is
economic. However, these reasons though stated in the
preambles of the Acts do not affect the operation of the
enactments. It is here that the ratio decidendi differs
from ratio legis.

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• A decision involves a legal principle, but the application of a
statute is not concerned with the reasons given for its
enactment. Judges do not enquire what the legislature
means, but only ask what the statute means. Here one has
to consider the maxim, cassante ratione legis, cessat ipsa
lex (the reason of the law ceasing, the law itself ceases). It
does not apply to statute law, since the statute continues to
exist until it is repealed by another statute. On the other
hand, when the principle behind a decision disappears, the
decision ceases to be authority and no judge is bound to
follow it.

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• On the Continent of Europe the authoritative
sources of law are statutes and customs.
However, they can never cover every possible
case. Hence, courts are called upon to fill the
gaps in law; a decision can become an authority
only if followed in other cases. This is how a
customary rule of law is established. Thus Article
4 of the French Civil Code runs thus: "The judge
who shall refuse to give judgment under pretext
of the silence, of the obscurity, or of the
inadequacy of the law, shall be subject to
prosecution as guilty of a denial of justice."

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• And Article 1 of the Swiss Civil Code of 1907
says: "The statute governs all matters within the
letter or spirit of any of its mandates. In default
of an applicable statute, the Judge is to
pronounce judgment according to the customary
law, and in default of a custom according to the
rules which he would establish if he were to
assume the part of a legislator. He is to draw his
inspiration, however, from the solution
consecrated by the doctrine of the learned and
the

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jurisprudence of the courts." Here Austin
notices a point of distinction between the
Continental and English views on customary
law. In England customary law is nothing
but judiciary law based on anterior custom
and custom is regarded as binding because
it is a part of Judge-made law. On the
other hand, the judiciary law of the
Continent is binding because it is the
evidence of a customary law.

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• India follows the English practice. Courts are imperatively
bound by decisions of higher courts in the hierarchy. At the
apex stands the Supreme Court. Under Article 141 of the
Constitution of India the law declared by the Supreme
Court is binding on all courts in India. It is empowered also
to give advisory opinion under Article 143. Besides, Article
145 confers on the Supreme Court rule-making powers.
Similarly the High Courts are empowered under Article 227.
From these provisions and the framework of the hierarchy
the rules binding one court to another by way of
subordination are deduced.

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• Thus Section 3 of the Code of Civil
Procedure, 1908 provides that a District
Court is subordinate to the High Court and
every Civil Court inferior to a District
Court and every Court of Small Causes is
subordinate to the High Court and the
District Court. The Code of Criminal
Procedure, 1973 also makes similar
provisions with regard to the jurisdiction
of Sessions Judges and Magistrates

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• The decision of a superior Court is binding on an
inferior court and not the other way round. A
Single Judge must follow the decision of a
Division Bench and the latter must follow a Full
Bench decision of the same Court. As observed by
Subba Rao, C.J. of the AP High Court in
Subbarayudu v. State 1955 ALT 53 "A Single
Judge shall not differ from the judgment of
another Judge of the Court. If he does not agree
he shall refer the matter to a Bench of two
Judges. He is bound by the decision of a Divisional
Bench exercising appellate jurisdiction.

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• If there is a conflict of Bench decisions, he
should refer the case to a Bench of two Judges
who may refer it to a Full Bench. A Single Judge
cannot differ from the Divisional Bench unless a
Full Bench or the Supreme Court has overruled
that decision specifically or laid down different
law on the same point. A Divisional Bench must
ordinarily respect another Divisional Bench but if
it differs the case should be referred to a Full
Bench." All these provisions relate to "absolutely
authoritative" precedents.

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• Until the nineteenth century, case law was the
main source of law, statutes being of relatively
minor importance. But today their roles are
reversed, indeed some would say that statutes
are too dominant, that our system is “ Choking on
statutes” many of which are in need of repeal or
amendment if only the legislature had time. The
reasons for the growth of the statutes as a
source are several. Partly, it is because the social
and economic problems of the twentieth century
have demanded more sophisticated legal
techniques than can be provided by case law alone.

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• The second category is that of "conditionally authoritative"
precedents. They are ordinarily binding on the Court before
which they are cited, but are liable to be disregarded in
certain circumstances. Thus the decision of a Single Judge
of a High Court is absolutely authoritative on the
subordinate Courts, but is conditionally authoritative if
cited before a Division Bench of the same High Court. This
disregard may take either of the two forms — overruling or
dissenting — according as the disregarding court is one of
superior jurisdiction or of co-ordinate authority.

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• Thus the decision of a Single Judge of the
High Court is only conditionally
authoritative and may be dissented from
by another Single Judge or overruled by a
Division Bench. However, a Division Bench
cannot dissent from another Division
Bench decision. The correct rule on the
point has been laid down by Sir Lionel
Leach in Seshamma v. v. N. Rao 1940) 1 MLJ
400 (412).

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• thus: "While a Judge of a High Court sitting alone is not
bound on a question of law by the decision of another Judge
sitting alone, this principle goes no further. The Division
Bench is thefinal court of appeal in an Indian High Court
unless the case is referred to a Full Bench, and one Division
Bench should not regard itself bound by the decision of
another Division Bench on a question of law. If a Division
Bench does not accept as correct the decision on a point of
law of another Division Bench, the only right and proper
course to adopt is to refer the matter to a Full Bench."
Where a Full Bench takes a view contrary to that of
another Full Bench of equal strength the matter should be
referred to a larger Bench

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• A third category of precedents is called
"persuasive". And this is not a legal source of law
— it may be styled a historical source of law. All
the same it is entitled to high respect and may be
followed by a court if its reasoning commends
itself as sound and cogent. Thus the decisions of
one High Court are only persuasive precedents in
other High Courts. To this category belong the
rulings of English and American courts. It is said
that a previous case is binding only as to its ratio
decidendi and the ratio is distinguished from
obiter dicta which do not bind.

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• Thus obiter dicta have persuasive influence. An
obiter dictum is always something said by a judge.
In the words of Lord Campbell in Attorney-
General v. Dean and Canons of Windsor : 8 HL 369
"Observations made by members of the House (of Lords)
beyond the ratio decidendi may be entitled to
respect (but) are only to be followed insofar as
they may be considered agreeable to sound reason
and to prior authorities."

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• Finally, Article 141 of the Constitution uses the
words "all courts", that is, the courts other than
the Supreme Court. And the Supreme Court is
thus free to depart from a prior decision of the
court. However, it does not mean that it would
readily do so on every case: "Accepting that this
Court is not bound by its own decisions and may
reverse a previous decision, the Court will surely
be slow to do so unless such previous decision
appears to be obviously erroneous."

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• This finds an echo in the announcement in England
on July 26, 1966 by the House of Lords that it
would no longer be absolutely bound by its own
decisions: "Their Lordships regard the use of
precedent as an indispensable foundation upon
which to decide what is the law and its application
to individual cases. (Since) too rigid adherence to
precedent may lead to injustice in a particular
case and unduly restrict the proper development
of the law, they propose to modify their present
practice and to depart from a previous decision
when it appears right to do so."

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• The Ratio Decidendi of a case
• What is "law" in a precedent is its ruling or ratio
decidendi in respect of instant and future
litigants. And knowing the law in this context
means knowing how to extract the rationes
decidendi from cases. The expression, ratio
decidendi is "the reason for (or of) deciding".The
word "decision" has four shades of meaning. First,
it may mean the ultimate order made by the Court
to determine the case and on the strength of this
one party or another may seek execution.

7, 2021
• Second, it may refer to the whole case. Third, it
may mean the determination of a particular issue.
Fourth, it may refer loosely to the reason for
reaching such a determination. And G.W. Paton
prefers the third meaning, that is, the decision of
any issue in the course of judicial proceedings. In
this context, "order" refers to the final order
made by the court and binding the parties to the
proceedings, while "judgment" refers to the
reasons given by the judgment to explain and
justify its order.

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• The expression ratio decidendi is normally used to
refer to some binding rule found in decided cases,
which a later court cannot generally question. And
a defining technique is to elucidate the judicial
power to make binding rules and a rule made
within the ambit of this power will constitute the
ratio of the case. There is thus a distinction
between the rule-making of Judges which is intra
vires a power to make binding rules and the rule-
making of Judges which is ultra vires this power.
But there is an important limitation on the rule-
making power vested in Judges.

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• And this is the principle which denies them the
power to make binding rules unless they are
relevant to the determination of actual litigation
before the court. In the wake of this connection
came a corollary, namely, a principle reducing the
importance of communications of the law
delivered by Judges, either accidentally or
deliberately upon hypothetical issues. As a result
obiter dicta grew up — they are in a sense ultra
vires enunciations of law. The distinction between
ratio decidendi and obiter dictum is in essence a
distinction between relevance and irrelevance.

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• A rule-making power may have two limitations, formal or
substantial. They may restrict the way in which rules are
made and they may also restrict what rules are made. And a
Judge's power is subject to both kinds of limitation.
However, ratio deddendi has only a formal limitation,
namely, that a rule acted upon in court can rank as a binding
rule. Of course, there may be an exception, for example,
the per incuriam rule. The fact that the rule has been acted
upon is the hallmark of relevance. And this is expressed in a
variety of ways, e.g. "the rule applied", "the reason for the
decision", "the basis of the decision".

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• Here one may notice the difference between the
rule-making procedure of Parliament and the
case-law. The former operates on a text, while
the Judges in case-law do not draft the rules to
act upon. And Judges decide cases by acting upon
rules. The minimum required for a Judge to act
upon a legal rule consists of three things: (a) he
should have a rule in mind while deciding to act,
without a precise formulation of a rule; (b) he
decides that the rule is applicable, that is, some
fact or set of facts should be subsumed under
the rule; and

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• (c) his conduct should conform to the
prescriptions of the rule. In the judicial process
the Judge should show that he is acting upon a
rule. It should be remembered that case-law rules
are incomplete: Judges do never claim
completeness for the statements of rules and
exceptions. The reason why a Judge enunciates
the rule of law to act upon is that the rule
justifies his action. But this must be a rule
acceptable as a rule of the legal system.

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• In Osborne v. Rowlett, Sir George Jessel
says: "The only thing in a Judge's decision
binding as an authority upon a subsequent
Judge is the principle upon which the case
was decided." This brings out the
distinction between the binding nature of a
decision on a particular issue and the
binding nature of a principle "upon which
the case was decided". The former is
precise, while the latter is not.

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• Ordinarily such precise decisions are supported
by a course of reasoning which establishes a
general principle of law used by the court to
justify its decisions. This principle is called the
ratio decidendi of the decision. And its binding
nature is of a different kind. Unfortunately Paton
uses "proposition" in place of "principle": "A
course of reasoning establishes a general
proposition of law (for the court) to justify its
decision." And this is not correct.

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• The distinction between a "principle" and a
"proposition" may be likened to that between a
"propositional function" and a "proposition". In the
words of Bertrand Russell: "A propositional
function is any expression containing an
undetermined constituent or several
undetermined constituents, and becoming a
proposition as soon as the undetermined
constituents are determined. If I say 'X is a man'
that is a propositional function."

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• If we substitute "Robinson" for X in "X is a man", then
"Robinson is a man" expresses a true proposition. Russell
explains this in his Principia Mathematica thus: "By a
'propositional function' we mean something which contains a
variable X, and expresses a proposition as soon as a value is
assigned to X. That is to say, it differs from a proposition
solely by the fact that it is ambiguous: it contains a variable
of which the value is unassigned. The values of the function
are propositions." Since propositions of law are akin to rules
of law, Ronald Dworkin distinguishes between "principles"
and "rules" in two ways. First, principles differ from rules

7, 2021
• in the character of the direction
they give — while rules are applicable
in an all-or-nothing fashion, principles
State "a reason that argues in one
direction but (do) not necessitate a
particular decision". Second,
principles have a dimension of weight
or importance which rules do not.

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• No Judge ever lays down any general proposition
of law and therefore one has to discover or
abstract a ratio or principle from the facts of the
case decided. Hence with the introduction of new
facts, an extension of the ratio or principle takes
place, though the authority of the previous cases
is not thereby disavowed. And in this way the
case-law has developed from precedent to
precedent so as to keep pace with the changing
needs of society. Markby realised this flexibility
while speaking about the "judiciary law".

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• He said: "Were the judges in England compelled,
as in Italy, France and Spain to State separately
and fully what French lawyers call the motives,
and Spanish lawyers the points of their decisions
— their findings in fact and the rules of law —
there would be a complete revolution in the
history of English case-law. The law being stated
in distinct propositions, altogether separate from
the facts, would be easily ascertained. This,
coupled with our notions as to the authority of
prior

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• decisions, would render a conflict almost
impossible. The law would soon become clear and
precise enough; but so far as judicial decision was
concerned, it would become much more rigid. It is
because English Judges are absolved from the
necessity of stating general propositions of law
and because, even when these are stated, they
are always read as being qualified by the
circumstances under which they are applied, that
our law remains bulky and uncertain, but has also,
in spite of our respect for precedent, remained
for a long period flexible."

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The sources do not provide a neatly ordered legal
framework under which one particular fact
situation is covered by one particular source of law.
Rather the sources frequently overlap and on
occasions conflict. Different case law sources, may
be potentially applicable to the same fact situation.
Statutes may also overlap in a particular context.
There may occasionally be a conflict between their
provisions or the way they have been interpreted.
Both statutory and case law sources may overlap, it
being left to the courts to resolve their competing
claims to be applied to the situation in question.

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Concepts of law are more likely chess pieces.
They can be used to produced certain
results but the players have a choice as to
the move. Similarly, lawyers and judges
often have a choice as to how they will
move the concepts. The way in which they
are moved and are applied to facts involves
a process of reasoning.

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Legal reasoning and logic
Lawyers are often thought of as having logical
minds. This gives the impression that legal
reasoning itself is or should be governed by logic.
When we refer to a logic we are often thinking of
the deductive form of argument known as the
syllogism (drawing a conclusion from two
statements).
All living things are mortal
Katrina Kaif and Salman Khan are living things
Therefore Katrina and Salman are mortal

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Types of reasoning
There are two types of reasoning
1. Deductive reasoning
2. Inductive reasoning
Deductive reasoning
A lawyer advising his client as to the application of a detailed statutory

provision will employ deductive type of reasoning.
The statute is a major premise, the lawyer identifies his case as falling within
the statute and then deduces as the conclusion the way in which it
applies to his client.
Deductive logic is only applicable once a clear major premise has been
established.

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Inductive reasoning
If the source is not a statute but case law, no major premise is
likely to be clear from just one case decision. Instead, the
lawyer will have to examine several cases to find a major
premise which underlies them all. He will have to reason
from particular case decisions to a general proposition.This
form of reasoning is often referred to as inductive logic as
opposed to deductive logic where the reasoning is from the
general proposition to the particular conclusion in the case
itself.
Judges too make use of inductive and deductive logic when
deciding cases.

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Cases which involve a question of what law should be applied
come before the courts precisely because there is no purely
logical answer to the question. Instead there is a choice
which, according to Lord Diplock, is exercised by making a
policy decision. But how does the judge make this decision?
Obviously will be influenced by the rhetoric of the parties
counsel, by the way in which they have framed the issue and
the analogies they have suggested. He may have his own
personal views, although on legal matters these are likely to
have become “ institutionalised” over the years of practice
before the courts. Perhaps the most important influence on
his choice is the knowledge that he will have to justify his
decision in a reasoned judgment.

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Thanks
7, 2021
Precedent
Precedent or
or
stare
stare decisis
decisis..
Legal Reasoning and Justification
• The term commonly used for the doctrine of
precedent is called stare decisis. This is an
abbreviation of the Latin phrase, stare decisis et
non quieta movere (to stand by precedents and
not to disturb settled points). Generally speaking
stare decisis means that a point of law once
settled by a judicial decision is not to be departed
from. In other words, an earlier case when
directly in point must be followed in a subsequent
case.

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Legal Reasoning and
Justification
Professor Neil Mac Cormick in his book Legal
Raeasoning and Legal Theory, suggests that two
factors in particular may be considered by judge
when justifying his decision. The first is the
extent to which a proposed decision will cohere
with existing principles and authorities: the
greater the inconsistency with the existing legal
framework that will result from a proposed
decision, the less likely it is to be adopted.

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• The second concerns the broader
consequences of the decision for potential
litigants, the legal system and indeed the
role of law in society.
Judges may refer to common sense, the
supposed view of the common man or they
may refer to notions of justice and
fairness.

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• Some critics see some times arguments as merely
playing with language. They argue that if
judgments are “deconstructed by unravelling the
linguistic devices, the emptiness of legal reasoning
will be revealed. This view, often associated with
the movement known as “ critical legal studies,”
challenges conventional thinking but to some
extent depends upon setting up an easy target: if
legal reasoning purported to provide a scientific
route to the truth one would have more sympathy
with the critics, but that is not its nature.

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Rather as Professor John Wisdom has put it, legal
reasoning is “ not a chain of demonstrative
reasoning. It is a presenting and re-presenting of
those features of those cases which severally co-
operate in favour of the conclusion …… The
reasons are like the legs of a chair not the links
of a chain .”
It is important to realise that a judge can only
properly take into account those considerations
which can be adequately argued before a court of
law.

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We will continue…..
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7, 2021
Precedent
Salmond says:
A precedent is a judicial decision which
contains in itself a principle. The
underlying principle which thus forms its
authoritative element is often termed the
ratio decidendi. The concrete decision is
binding between the parties to it, but it is
the abstract ratio decidendi which alone
has the force of law as regards the world
at large.

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John Chipman Gray
It must be observed that at the common law not
every opinion expressed by a judge forms a
judicial precedent. In order that an opinion may
have the weight of a precedent, two things must
concur: it must be, in the first place, an opinion
given by a judge, and in the second place, it must
be an opinion the formation of which is necessary
for the decision of a particular case, in other
words, it must not be obiter dictum.

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Both the learned authors, on reaching this point of
safety, stop. Having explained to the student that
it is necessary to find the ratio decidendi of the
case, they make no further attempt to state any
rules by which it can be determined. It is true
that Salmond says that we must distinguish
between the concrete decision and the abstract
ratio decidendi, and gray states that the opinion
must be a necessary one, but these are only vague
generalisations.

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Phrase ratio decidendi is one of the most
misleading expression of English law, for
the reason which the judge gives for his
decision is never the binding part of the
precedent. The logic of the argument, the
analysis of the prior cases, the statement
of the historical background may all be
demonstrably incorrect in a judgment, but
a case remains a precedent nevertheless.

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It would not be difficult to cite a large
number of leading cases, both ancient and
modern, in which one or more of the
reasons given for the decision can be
proved to be wrong, but in spite of this,
these cases contain valid and definite
principles which are as binding as if the
reasons on which they are based were
correct.

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It may be laid down as a general rule that
that part alone of a decision of a court of
law is binding upon courts of co-ordinate
jurisdiction and inferior courts which
consists of enunciation of the reason or
principle upon which the question before
the court has really been determined. This
underlying principle which forms the only
authoritative element of a precedent is
often termed the ratio decidendi .

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Professor Morgan of the Harvard Law
School, in his valuable book The study of
Law says: Those portion of the opinion
setting forth the rules of law applied by
the court, the application of which was
required for the determination of the
issues presented, are to be considered as
decision and as primary authority in later
cases in the same jurisdiction.

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Thus, a case may be presented, involving an
important principle of law, although the
court has given judgment without
delivering an opinion. At the present time,
we rarely find a case of any importance in
which there is not a statement of the
reasons on which the judgment is based,
although occasionally an appellate court
will affirm without opinion a case which
involves an interesting point.

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We will continue……….
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7, 2021
How to determine ratio
of a case

7, 2021
• Since the ratio decidendi of a case has the nature
of a propositional function, it is variable and
becomes elusive. And jurists have even been in
search of it. Any legal system using precedent has
to consider the way in which they are relevant. To
this end the relevancy is found in the fact that
decisions involve some principle of general
application. But the question is: how is this to be
ascertained? Classical theory has regarded the
binding part of a decision as the legal principle
formulated.

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• him the ratio decidendi is controlled by the
relation between "the material facts" of the case
and the holding on these facts. While the ratio
consists of the very reasoning necessary to
explain the holding on "the material facts" found
by the precedent judge, he suggests that the
better way to approach the problem is to
elucidate the ratio of a case from the facts
themselves rather than from the principle
enunciated by the Cour.

7, 2021
• Julius Stone challenges Goodhart and distinguishes between
"descriptive" and "prescriptive" ratio decidendi to conclude that
facts may be of many possible "levels of generalisation".
Descriptively the phrase imports an explanation of the court's
reasoning to its conclusion based on sociological, historical and
even psychological inquiry. And the finding from such an inquiry is
true or untrue as a matter of fact. This may be sought at various
levels. Prescriptively the phrase refers to a normative judgment,
requiring us to choose a particular, that is, binding ratio decidendi.
In other words, Stone's argument is that Goodhart's theory yields
indeterminate results because the "principle" derivable from a
case by the Goodhart method of "material facts plus decision" is
entirely dependent on the level of generality at which one chooses
to describe the facts.

7, 2021
• In this context R. Cross defines "the ratio
decidendi of a case" as "any rule of law
considered necessary by the Judge for the
decision of the case: it is that part of the
decision which has binding effect and the facts of
the case play a large part in its identification".
Hence, all other statements of law are obiter
dicta. Now, the word "necessary" is used in the
sense of "essential to the working of a judicial
system". It seems Cross supports Goodhart. And a
binding principle may be sketched as follows.

7, 2021
• Where the facts are a, b, c, d, e, g and a
reported decision is P, the decision is said
to be based on the rule that whenever A,
B, C then X should be decided. Here the
lower case letters stand for the particular
circumstances of the case and capital
letters for general properties of facts so
that a is an instance of A, etc. Thus the
ruling in P can be summarised as:
• P: a, b, c, d, e, g/A.B.C X.

7, 2021
• The novel case, N, is a case of a1, b1, c1, 1, (i.e. not — e1),
f1 and it is governed by P, which is binding on the court.
Now, in case the court decides to follow P, its ruling will be:
• N: a1, b1, c1, d1, 1, f1, /A.B.C X.
• In spite of some difficulties Goodhart's definition of ratio
decidendi may be taken as a working rule. According to him
the ratio is equated with the material facts of the case plus
the decision thereon. And the rules for finding the ratio or
principle may be summed up as follows:
• (1) The principle of a case is not found in the reasons given
in the opinion.

7, 2021
• (2) The principle is not found in the rule of law set forth as
the opinion.
• (3) The principle is not necessarily found by a consideration
of all the ascertainable facts of the case, and the Judge's
decision.
• (4) The principle of the case is found by taking account
• (a) of the facts treated by the Judge as material, and
• (b) his decision as based on them.
• (5) In finding the principle it is also necessary to establish
what facts were held to be immaterial by the Judge, for
the principle may depend as much on exclusion as it does on
inclusion.

7, 2021
• Goodhart himself mentions that his definition suffers from two
infirmities. The first is that the facts are "infinitely various",
though the material facts are strictly limited. Thus the
consideration in a contract is a single material fact but the kinds
of consideration are unlimited. Secondly, it may happen that the
facts, stated by the Judge to be real and material, can be actually
non-existent. This is a hypothetical case. It may be pointed out
that the whole doctrine of precedent is based on the theory that
generally Judges do not make mistakes either of fact or of law. In
other words a decision given per incuriam is an exception that
confirms the general rule. A case may be wrongly decided or
decided for the wrong reason. As pointed out by Simpson: "The
ratio of a case is only binding if it is not inconsistent with statute,
or inconsistent with the ratio of another decision.

7, 2021
• Now cases may differ according as they contain a single opinion or
several opinions. The determination of the ratio decidendi becomes
easier if there is only a single opinion or all the opinions are in
agreement. In case the several judgments agree in the result, but
differ in the material facts on which they are based the principle
is limited to the sum of all the facts considered material by the
various judges. Thus a case involves facts A, B and C and the
defendant is held liable. The first judge finds that fact A is the
only material fact, the second that B is material, the third that C
is material. The principle of the case is therefore, that on the
material facts A, B and C the defendant is liable. If, however, two
of the three judges had agreed that fact A was the only material
one and that the others were immaterial, then the case would be a
precedent one on this point, though the third Judge had held that
the facts B and C were material ones.

7, 2021
• This may sound too mechanical and may be seen in the case
of Golak Nath v. State of Punjab, as decided by the Indian
Supreme Court.
• Five judgments were delivered in the Golaknath case by (1)
the Subba Rao block of Subba Rao, C.J., Shah, Sikri, Shelat
and Vaidialingam, JJ.; (2) Hidayatullah, J.; (3) the Wanchoo
block of Wanchoo, Bharagava and Mitter, JJ.; (4) Bachawat,
J; and (5) Ramaswami, J. They may be reduced to three if
the joint dissenting judgments of the Wanchoo block are
equated with the separate dissenting judgments of (4) and
(5). And the position would be like this: the Subba Rao block
of five; the Wanchoo block of five; and the lone judgment
of Hidayatullah, J. Six propositions seem to have been laid
down by the judgments as follows:

7, 2021
• (a) Parliament cannot amend Part III of the Constitution of
India so as to "take away or abridge" the fundamental
rights; (b) all amendments made prior to February 27, 1967
and affecting fundamental rights other than the "right to
property" have full validity; (c) the effect of the first,
fourth and seventh amendments on the "right to property",
though made prior to February 27, 1967 remains valid and
operative as part of the law of India; (d) the seventh
amendment to Article 31-A(2) is similarly valid and
operative; (e) the seventeenth amendment expanding the
list of statutes in the Ninth Schedule is similarly valid and
operative; and

7, 2021
• (f) the impugned land reform legislation of Punjab and
Mysore (Karnataka) is wholly valid. It is interesting to note
how these propositions are established, (a) is held by the
majority comprising (1) and (2); (b) is held by (2) only,
though it necessarily follows from the view of the Wanchoo
block comprising (3), (4) and (5); (c), (d) and (f) are held
unanimously; and (e) is held by ten Judges with Hidayatullah,
J. dissenting. And the question is how to extract a single
ratio out of these judgments. The answer is that the tangle
of five separate judgments cannot possibly yield any single
ratio. As observed by R. Cross:

7, 2021
• "The ratio decidendi is a conception
peculiarly appropriate to a single judgment.
Accordingly, it is probably impossible to
avoid something in the nature of arbitrary
rules to meet cases in which several
judgments are delivered. The main trouble
is that it is impossible to formulate these
rules with anything like complete
precision."

7, 2021
• Three approaches may be considered in this connection. The
first approach takes the phrase itself as a sufficient guide
to the ratio. Thus in the Golaknath case one is to look for
those propositions of law which were necessary and
sufficient to base the "declaration" made by the Supreme
Court. Article 141 uses the expression "declared" and this is
explained by Subba Rao, C.J. thus: "The expression
'declared' is wider than the words 'found or made'. To
declare is to announce opinion. Indeed the latter involves
the process, while the former expresses result.
Interpretation, ascertainment and evolution are parts of
the process, while that interpreted, ascertained or evolved
is declared as law. The law declared by the Supreme Court
is the law of the land."

7, 2021
• And what was necessary for the decision was the
conjunction of the reasons given either (i) by the 5-man
Subba Rao block and the 5-man Wanchoo block; or (ii) by
the 5-man Subba Rao block and by Justice Hidayatullah; or
(iii) by the 5-man Wanchoo block and by Justice
Hidayatullah. On any of these hypotheses, two sets of
reasons would be necessary; and the one wholly immaterial
and this might be any one of the three. The Wanchoo block
was in a minority in regard to proposition (a) and this does
not mean that its reasons were not "necessary to the
decision". However, these reasons can be ignored only on
the ground that there was sufficient majority to base the
decision without them. But this equally applies to either of
the two sets of "majority" reasons.

7, 2021
• The result is that the first supposed test of the ratio decidendi
would lead to an insoluble choice amongst three pairs of sets of
reasons with each pair comprising two different sets of ideas. In
practice, of course, the choice is not wholly insoluble. It is evident
that the reasons of the Wanchoo block are inconsistent with those
of either the Subba Rao block or Justice Hidayatullah. But the
last two reasonings are not necessarily inconsistent. Their
compatibility tends to assume that these two judgments form the
source of the ratio. Here one may hold with Chief Justice
Centlivres in the South African case of Fellner v. Minister of the
Interior, that even if a case has no apparent ratio decidendi, the
actual "decision" is "binding". In the narrowest sense of "decision",
this gives binding force only to proposition ( f); but on a wider
meaning of "decision" all the propositions are binding.

7, 2021
• The second approach may be formulated in terms of
"counting heads". Here one simply adds up the number of
Judges giving the propositions. Of course, the search is for
a majority of the participating judges. Let us take a case
with four views, p, q, r and s and in a court of 11 Judges — p
is supported by 4 judges, q and r by 3 each, and s, by the
remaining one. On a strict version of "counting heads" none
of the four views would be established, since none had a
clear majority. On the looser version p had more support
than any of the others and it would be part of the ratio. But
this violates Article 145(5) of the Indian Constitution,
requiring that the "judgment" and "opinion" need be
"delivered with the concurrence of a majority of the
Judges present at the hearing of the case".

7, 2021
• As observed by Greenbery S.A. in the Fellner case: "The
object of the enquiry is to ascertain what is the ratio
decidendi and not what are the opinions of Judges. Insofar
as the law is built up by judicial (precedent), it is not built
up on a counting of heads of all the members of the Court.
It is in the reasons of the majority of the Court for the
order that the ratio decidendi is to be sought, the reasons
of the dissenting Judges being irrelevant for this purpose"
In this context, "counting heads" in its looser version would
help us only as to the acceptance of "prospective
overruling".

7, 2021
• The third approach may be termed "the majority
of the majority". If the Golaknath decision is
proposition (a), it is supported by 6 of the 11
Judges and 5 support it for identical reasons. By
equating the ratio with the reasons given by "the
majority of the majority", Golaknath is confined
to the single judgment delivered by Chief Justice
Subba Rao with Justice Hidayatullah concurring
with him. And the difficulties involved in
extracting a ratio from Golaknath lead one to
prefer a pragmatic approach to precedent —
construction to rationes

7, 2021
Analysing
Analysing of
of the
the
"Common
"Common Cause
Cause
• The "Common Cause" is a registered Society. Under Article
32 of the Indian Constitution the Common Cause and three
retired government servants asked for striking down
certain provisions of the Commutation of Pension Rules
applicable to civilian and defence pensioners, since they
permit the Union of India to recover more than what is paid
to the pensioners upon commutation. Besides, the
petitioners sought for a direction asking the Government to
rationalise its scheme of commutation. The Single Judge of
theSupreme Court has delivered two judgments — one
relating to the civilian employees and the other relating to
the defence personnel — and tried to make it a single
judgment.

7, 2021
• During the course of the hearing the Union Government agreed to
restore the commuted portion of the pension in respect of "all
civilian employees at the age of 70 years or after 15 years
whichever is later". The facts are: (1) commutation makes available
a lump sum to a pensioner; (2) there is the risk factor involved in
case the pensioner dies before full recovery; (3) some
Governments including State and Union have formulated a 15-year
rule for restoration of the commuted pension; and (4) the 15-year
formula is not justifiable because it permits recovery of more than
the dues. The court has considered facts (1), (2) and (3) as
material and ignored fact (4) in coming to the decision that
restoration would take place on the expiry of 15 years from
retirement. But this decision is given per incuriam, since it abets
"unjust enrichment" banned by Section 70 of the Indian Contract
Act, 1872.

7, 2021
• As observed by Gajendragadkar, J. of the
Supreme Court in State of West Bengal v. B.K.
Mondal: "What Section 70 prevents is unjust
enrichment and it applies as much to individuals as
to Corporations and Government." In this context,
Simpson observes: "The ratio of a case is only
binding if it is not inconsistent with statute, or
inconsistent with the ratio of another decision."
And since the 15-year rule in the Common Cause
violates both it cannot be the ratio of the case.
In the result, it goes out.

7, 2021
• We are now concerned with the defence personnel judgment. Here
Misra, J. comes to the right point and adopts the "years of
purchase" basis and goes back to the 15-year rule by adding two
years to the period necessary for the recovery on the basis of
years of purchase. It may be noted that this addition of two years
is not justifiable because of the existence of the "multiplier
effect" involved in the "years of purchase". A multiplier is the
number by which the amount of a specific capital investment is
multiplied to give the resultant total amount by which the income
has increased. Let us take a concrete example. If I-Investment, Y
= income or capital value, then the multiplier K = Y/1 or KI = Y. In
other words, the multiplier of investment (monthly payment
because of commutation) to obtain capital value (lump sum given by
way of commutation) is known as the years' purchase. And the
number of years' purchase is found by dividing the capital value
(lump sum) by investment (monthly payment by pensioner).

7, 2021
• The total amount obtained by a pensioner at a time is the product of the
monthly payment out of the pension and the number of years necessary for
full recovery by Government. In the judgment this has been ignored and
the "multiplier" widened so as to make it equal to 15 years. But there is
absolutely no scope for the addition of two years to the multiplier as is
evident from the above equation. Moreover, this multiplier is a variable in
respect of each pensioner, because of the variability of I and Y involved in
the commuted pension. Therefore, it cannot be equated with the fixed 15-
year rule by the addition of two years to the multiplier. It is a
mathematical paradox. Finally, the judgment makes "equity" or equality
stand on "the more or less basis". Mathematically this is absurd. For "more"
is denoted by the sign > , "less" by < , while equality by =. Now, if > or <
remains = cannot take the field. This, it is most respectfully submitted,
sounds like an Orwellian paradox: "All animals are equal, but some animals
are more equal than others."

7, 2021
• In this context we are to extract the ratio from the Common
Cause. The Court's decision is the restoration of the commuted
portion of the pension on the expiry of 15 years from retirement.
This applies to civilian and defence pensioners and is made
effective from April 1, 1985. And the question is: what is the ratio
decidendi of the case? It has already been shown that the court
has accepted the 15-year rule since the Governments have
accepted it. This, it is submitted, cannot be called a judicial
decision. For Misra, J. concludes: "Many of the State Governments
have already formulated schemes accepting the 15-year rule. We
do not think we would be justified in disturbing the 15-year rule so
far as civilian pensioners are concerned." Here Section 70 banning
"unjust enrichment" is violated and the Court is blissfully ignorant
of this. The 15-year rule has been challenged by the Common Cause
because it abets the commission of this offence. This is the
justification for the Court's intervention in the matter.

7, 2021
• However, the correct yardstick has been evolved by the
court in respect of the defence pensioners: "the 'years of
purchase' basis". Unfortunately, the court has erred, it is
submitted, in adopting two bases on commutation according
as the pensioners are civilian or defence while coming to the
same decision as to the restoration of the commuted
portion of pension. This is wrong. As pointed out by the
Supreme Court in D.S. Nakara v. Union of India: "The
pensioners for the purpose of pension benefits form a class.
The equal treatment guaranteed in Article 14 is wholly
violated inasmuch as the pension rules accord differential
and discriminatory treatment to equals in the matter of
commutation of pension. Division is thus both arbitrary and
unprincipled."

7, 2021
• The Court has proceeded from the start on the
two yardsticks — one for the civilian pensioners
and the other for the defence personnel. The
civilian yardstick is the 15-year rule, while the
defence yardstick is "the years purchase' basis".
Thereafter, the latter has been equated with the
former by the addition of two years. But this
does more injustice than justice. Yet the Court
claims that this is 'equitable'. This is, to say the
least, unfair.

7, 2021
• Now, the question is: what is the ratio? It has already been
shown that there has been a double-think in the adoption of
two yardsticks on the restoration of the commuted portion
of pension. For, the 15-year rule and "the 'years of
purchase' basis" are two contradictory ideas and they
remain irreconcilable. Secondly, double-talk appears in
lengthening the procrustian bed of the years of purchase
basis so as to make it fit in with the 15-year rule. Thirdly,
the case gives the impression of two judgments, concurrent
and dissentient. And the concurrent judgment has been
arrived at without any legal reasoning. It is the function of
the "hunch" in judicial decision. Here the Judge decides by
feeling, and not by judgment; by "hunching" and not by
ratiocination. As observed by Hutcheson

7, 2021
• "The vital, motivating impulse for the decision is an intuitive
sense of what is right and wrong for that cause. And that
Judge having so decided enlists his every faculty and
belabours his laggard mind, not only to justify that intuition
to himself, but to make it pass muster with his critics.
Judges really do try to select categories or concepts into
which to place a particular case so as to produce what the
judge regards as a righteous result." Since the decision on
the 15-year rule is given per incuriam, it has no binding
effect at all. Fourthly, in case the one goes out, the other
remains. Hence, the dissentient judgment, namely, "the
'years purchase' basis" remains and attains the status of
concurrent judgment.

7, 2021
• And the question of its expansion into the 15-year rule does
not arise, since the latter violates Section 70 of the
Contract Act and is not enforceable. Finally, "the 'years
purchase' basis" becomes the ratio decidendi leading to the
order for restoration of the commuted portion of pension
to the pensioners. And the 15 years' limitation does not
apply. In other words, the number of years necessary to
repay the total lump sum would govern the recovery and no
pensioner can be made to pay more than what is paid to him.
And this is what the Common Cause has asked for.

7, 2021
ratio
ratio in
in the
the "Common
"Common
Cause"
Cause"
• Theories falling under quasi-contract are founded on a
broad principle that unjust enrichment should not be
retained at the expense of one who has suffered. In French
law this principle is known by the name of actio de in rem
verso, which "is founded on the principle of equity which
forbids one man to enrich himself at the expense of
another". This is applicable where "the estate of one person
being enriched without lawful cause at the expense of
another person, the latter, in order to obtain what is due to
him, does not enjoy the benefit of any action based on
contract, quasi-contract, delict or quasi-delict".

7, 2021
• Some recent codes provide for the return of unjust
benefit. This may be seen in Article 123 of the Polish Code,
Article 703 of the Japanese Civil Code, Articles 399-402 of
the Civil Code of Soviet Russia, Article 62 of the Swiss
Federal Code of Obligations, Article 812 of the German Civil
Code and Article 179 of the Chinese Code. The American
Restatement of the Law of Restitution, 1937 at p. 634
provides for an accounting by the plaintiff as a condition
for restitution. Lord Wright in England has pleaded for a
new law of restitution in place of the fiction of the implied
contract, where it is unreasonable and unjust for the
defendant to retain the benefit he has received.

7, 2021
• The doctrine of unjust enrichment flowing from quasi-
contract was partially stated in Section 70 of the Indian
Contract Act, 1872. And the Supreme Court noticed it in
State of West Bengal v. B.K. Mondal in which it was applied
to Government. Subsequently, the concept of unjust
enrichment has suffered a sea change at the hands of the
Supreme Court in Mulamchand v. M.P. State The Court has
held that Section 70 is based on a different kind of
obligation: "The juristic basis of the obligation in such a
case is not founded upon any contract or tort but upon a
third category of law, namely, quasi-contract or
restitution." In this connection the Supreme Court has
quoted with approval the observations of Lord Wright in
Fibrosa v. Fairbairn

7, 2021
• thus: "Any civilised system of law is bound to provide
remedies for unjust enrichment or unjust benefit, that is,
to prevent a man from retaining the money or some benefit
derived from another which it is against conscience that he
should keep. Such remedies in English law are different
from remedies in contract or in tort and fall within a third
category of the common law called quasi-contract or
restitution." The concept has been further widened so as to
include both law and equity. Hence the Indian Supreme
Court has been pleased to note the latest development of
the law by quoting the observations of Lord Denning in
Nelson v. Larholt

7, 2021
• "It is no longer appropriate to draw a distinction between law and equity.
Principles have now to be stated in the light of their combined effect.
Remedies now depend on the substance of their right, not on whether they
can be fitted into a particular framework . The right here is not peculiar to
equity or contract or tort, but falls naturally within the important category
of cases where the court orders restitution if the justice of the case so
requires." And the principle of restitution has been brought on a par with
the American Restatement of the Law of Restitution. This means according
to the Supreme Court that "a person (seeking) restitution has a duty to
account to the defendant for what he has received in the transaction from
which his right to restitution arises". This is the present position of the
law of restitution since Section 70 of the Contract Act started on its
journey in 1872. And the Common Cause v. Union of India has been decided
on this law, though the Court has not uttered a single word in this regard.
Lord Denning's expression summarises the law: "restitution if the justice
of the case so requires". And the Indian Supreme Court has approved of
this in Mulamchand.

7, 2021
• Since the law of restitution is applicable to commutation,
the 15-year rule is arbitrary and it causes injustice. Here it
is necessary to bring out the distinction between ratio
decidendi and obiter dictum. As observed by H.J. Abraham:
"Ratio decidendi refers to the essence, the vitals, the
necessary core of the decision; obiter dictum is more or
less extraneous, presumably unnecessary-to-the decision
point made by the author of an opinion. In other words, the
former constitutes the legal rule to be followed and
adhered to below; the latter is an expression of a brief
viewpoint, or sentiment, which at least in theory, has no
binding effect

7, 2021
• Of the two reasons — "the 15-year rule" and "the 'years of
purchase' basis" — the first cannot be justified since it incarnates
injustice in the shape of unjust enrichment. In other words, the
15-year rule is an "unnecessary to the decision point made by the
author of an opinion: (it) is an expression of a brief sentiment
(having) no binding effect". Hence, it is an obiter dictum. On the
other hand, "the 'years' purchase' basis" is "the necessary core of
the decision: (it) constitutes the legal rule to be followed and
adhered to below". In other words, this is the ratio decidendi,
having the binding effect. As pointed out by Simpson: "the reason
why a judge enunciates the rule of law upon which he acts is that
the rule justifies his action: not any rule will serve as a
justification, but only a rule which is acceptable as a rule of the
legal system."

7, 2021
• There is perpetual flux in the total push and pull of the
universe and a judge faces a twofold task: (1) he must first
extract from the precedents the underlying principle, the
ratio decidendi; (2) he must then determine the path or
direction along which the principle is to move and develop.
Unfortunately Misra, J. has not in the Common Cause
followed the salutory advice given by Cardozo. In case of
conflict of principles, one may point to one conclusion and
another may point to a second conclusion. A judge is to
choose between two paths, selecting one or the other and in
some cases he is to hit upon a third, which will be the
resultant of the two forces in combination or will represent
the mean between the extremes. This is illustrated by the
case of Riggs v. Palmer

7, 2021
• wherein it was decided that a legatee murdering his testator would not be
permitted to enjoy the benefits of the will. Three principles contended for
mastery. The first was the principle of the binding force of a will disposing
of the testator's estate in conformity with law. This pushed to the limit of
its logic seemed to uphold the title of the murderer. The second principle
was that Civil Courts might not add to the pains and penalties of crimes.
This pushed to the limit of its logic seemed to uphold his title. Over against
these two was the third principle rooted in justice, namely, that no man
should profit from his own iniquity. And the logic of this principle prevailed
over the logic of the other two. In the Common Cause also the same may be
noticed. The logic of "the years' purchase basis" is to prevail over the logic
of the 15-year rule, since the former is rooted in justice while the latter is
not. And the ratio decidendi of the case is "the 'years purchase' basis". In
the words of the Supreme Court: "A decision is binding not because of its
conclusion but in regard to its ratio and the principle laid down therein."

7, 2021
Conclusion
• In a famous dictum Lord Halsbury said: "A case is only authority
for what it actually decides. I entirely deny that it can be quoted
for a proposition that may seem to follow logically from it. Such a
mode of reasoning assumes that the law is necessarily a logical
code, whereas (it) is not always logical at all." Literally interpreted
it would be fatal to any system of precedents. But what Halsbury
meant is that there is more to the law than a mechanical process
of logical deduction. It is obvious that the Judge has in every case
to decide for himself which of the circumstances of the alleged
precedent were relevant to the decision and whether the
circumstances of his own case are in their essentials similar. Once
he has decided which principle to apply, a bit of logic may enter
into his application of principles. But there cannot always be a
principle which imposes itself or an absolutely inescapable logical
deduction. Generally there is a choice

7, 2021
• And this has been explained by Chandrachud, C.J. in Deena
v. Union of India thus: "Any case, even a locus classicus, is
an authority for what it decides. It is permissible to extend
the ratio of a decision to cases involving identical situations,
factual and legal, but care must be taken to see that this is
not done mechanically, that is, without a close examination
of the rationale of the decision cited as a precedent."
• In this context the role of the Judge is described by Lord
Wright while discussing Bell v. Lever Bros thus

7, 2021
• The judge could go step by step with previous authorities to
the point that an agreement based on mistake (is)
unenforceable. Then he would have to decide whether the
same result followed when the prior contract was indeed
existing, but could be cancelled without compensation and
was voidable. Here the ways parted, and the judge had to
make up his mind by analogical reasoning, and by his
perception of what was just or convenient."
• And the Common Cause, it is submitted, leaves much to be
desired insofar as the "analogical reasoning" and the
"perception of what was just" are concerned.

7, 2021

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Law and Fact

Tuesday, December Dr. Tabrez Ahmad, KLS KIIT. 2

Tuesday, December Dr. Tabrez Ahmad, KLS KIIT. 3

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Custom Precedent Legislation

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Judgments in cases are sources of law, for what a

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A lawyer advising his client as to the application of a detailed statutory

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